Sentencing Reform & Mandatory Minimums

In the 30 years since the ill-conceived War on Drugs began and the overly harsh mandatory minimum sentences imposed for low-level offenses were enacted, the prison population has exploded. It is time to eliminate mandatory minimums and give judges more discretion in sentencing.

On October 1, 2015, a bipartisan group of senators introduced S. 2123, the Sentencing Reform and Corrections Act of 2015, a major criminal justice reform package aimed at reducing some mandatory minimum sentences for nonviolent drug offenders and curbing recidivism. It is the most significant federal legislative initiative on criminal justice reform since the passage of the Fair Sentencing Act of 2010.

On August 1, 2013, Senators Dick Durbin, D. Ill., and Mike Lee, R. Utah, introduced the Smarter Sentencing Act of 2013. The bill would reduce mandatory minimum sentences for some drug offenses and would give judges more flexibility to impose sentences below the mandatory minimum requirement. It would also allow judges to apply the new crack/powder cocaine sentencing policies under the Fair Sentencing Act of 2010 retroactively to offenders currently incarcerated under the old law. The House introduced a companion bill, sponsored by Congressmen Raul Labrador, R. Idaho, and Bobby Scott, D. Va., on October 30, 2013.

The Senate Judiciary Committee held a markup on the bill and voted overwhelmingly (13-5) on January 30 to advance the bill to the Senate floor.

On August 3, 2010, President Barack Obama signed the Fair Sentencing Act into law, which reduced the discriminatory sentencing disparity between crack cocaine and powder cocaine offenses. Before the FSA, a person charged with possession of just five grams of crack cocaine – the weight of two sugar packets – received the same five-year mandatory minimum sentence as someone caught with 500 grams – about a pound – of powder cocaine. The FSA reduced the sentencing disparity from a ratio of 100-to-1 to 18-to-1 and eliminated mandatory minimum sentences for simple possession of crack cocaine.

2008 Federal Legislation: In 2008, the House Judiciary’s Subcommittee on Crime, Terrorism and Homeland Security presented an almost unanimous agreement on the need for crack cocaine sentencing reform. The hearing reviewed four House bills that would have reduced excessive penalties for low-level crack cocaine offenses, minimized the pool of defendants subject to mandatory minimum sentences, and eliminated the racially discriminatory 100-to-1 sentencing disparity between crack and powder cocaine offenses.

Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007: This bill would have changed existing law to create a uniform sentencing structure for both forms of cocaine to make the penalties for possessing crack cocaine to equal that of powder cocaine.

Mandatory minimum sentences (mandatory minimums) hinder the discretion of judges in sentencing, who are bound by statute to place the convicted behind bars. Existing statutes do not allow judges to hand down alternative punishments, nor do they give them the option to prescribe treatment instead.

Supreme Court Cases

Kimbrough v. United States: On December 10, 2007, the U.S. Supreme Court upheld the right of judges to reject harsh federal sentencing guidelines for crack cocaine offenses and to impose more lenient sentences.

United States v. Booker and United States v. Fanfan:In a two-part decision on January 12, 2005, the U.S. Supreme Court held that the current federal sentencing system violates a defendant’s right to trial by jury, while at the same time directing federal judges to “take [federal guidelines] into account” when imposing sentence

Blakely v. Washington: In this 2004 decision, the Supreme Court held that any facts leading to a lengthened sentence – beyond the prescribed sentencing guideline maximum — must either be decided beyond a reasonable doubt by a jury or admitted by the defendant.

Reports

The Changing Racial Dynamics of the War on Drugs – The Sentencing Project – 4/14/09. For the first time in 25 years, since the inception of the “war on drugs,” the number of African Americans incarcerated in state prisons for drug offenses has declined substantially. The report finds a 21.6% drop in the number of blacks incarcerated for a drug offense, a decline of 31,000 people during the period 1999-2005.

The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties (pdf) – Justice Policy Institute – 12/01/07. Over the course of the last 35 years, the rate at which the U.S. places its citizens in jails and prisons has risen dramatically. For the first 70 years of the twentieth century, U.S. incarceration rates remained relatively stable at a rate of about 100 per 100,000 citizens. Since 1970, the U.S. has experienced a large and rapid increase in the rate at which people are housed in federal and state correctional facilities. Currently, the U.S. incarceration rate is 491 per 100,000.

Caught in the Net: The Impact of Drug Policies on Women and Families – American Civil Liberties Union – 03/15/05. In this report, the ACLU, Break the Chains and the Brennan Center for Justice advocate for fair drug laws and policies that adequately take into account the needs of women and their families, and address the root causes of women’s involvement with illegal drugs.

Changing Direction? State Sentencing Reforms 2004-2006 (pdf) – The Sentencing Project – 3/1/07. The Sentencing Project has released a new study reporting growing momentum for sentencing reform designed to limit prison population growth and reduce ballooning corrections budgets in the United States.

Drug Policies in the State of Michigan – Economic Effects (pdf) – Justice Policy Institute – 05/05/03. This report provides information on the scale and costs of the problem of drug use in Michigan. It analyzes the effectiveness and cost efficiency of the state’s current drug policies, which focus on using the justice system as a significant vehicle to solve the problem of drug use.

Life Sentences: Denying Welfare Benefits To Women Convicted Of Drug Offenses (pdf) – The Sentencing Project – 3/18/03. Section 115 of the Welfare Reform Act, a provision of the act that has received little attention, stipulates that persons convicted of a state or federal felony offense involving the use or sale of drugs are subject to a lifetime ban on receiving cash assistance and food stamps. This provision applies only to those convicted of drug offenses. Thus, offenders released from prison after serving a sentence for murder, for example, are eligible for welfare benefits and food stamps, but not those who have a conviction for possessing or selling a small quantity of drugs.